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Mason · 04-03-2003, 08:45 PM

Threshold:

I'm sorry but the answer to that problem is not so clear.

The first issue would be to determine whether or not this is a copyright infringement or breach of contract. My understanding is that a GPL is attached to the code and therefore, in some instances, anyone who uses the code not in accordance with the GPL guidelines is breaching the licensing agreement. (E.g. If you were to use software not in accordance with an EULA that you agreed to, you would be liable for a breach of contract claim, not copyright infringement. Although I acknowledge that there are some instances wherein exceeding the scope of a license can lead to an infringement claim). Therefore, the first issue would be to determine whether or not this is a breach of contract or infringement claim.

Secondly, even if it was a copyright infringement claim, 17 USC 507(b) states :No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued. If the licensors did not have knowledge of the violation more than 3 years ago it seems they can proceed fairly easily (subject to a determination of reasonable diligence). Otherwise, there are a number of tricky issues: Some courts have held that 507(b) barred such actions, some have said that the copyright holder may sue only for infringements within the last 3 years, and others have held, as you suggested, that the recent infringements are part of one continuing action.

While you are certainly correct that the SOL may not be a bar to suit in this instance, neither is the issue very clear as to how a court might rule.

04-03-2003, 08:45 PM	#13
Mason Member Join Date: Apr 2002 Posts: 158	Threshold: I'm sorry but the answer to that problem is not so clear. The first issue would be to determine whether or not this is a copyright infringement or breach of contract. My understanding is that a GPL is attached to the code and therefore, in some instances, anyone who uses the code not in accordance with the GPL guidelines is breaching the licensing agreement. (E.g. If you were to use software not in accordance with an EULA that you agreed to, you would be liable for a breach of contract claim, not copyright infringement. Although I acknowledge that there are some instances wherein exceeding the scope of a license can lead to an infringement claim). Therefore, the first issue would be to determine whether or not this is a breach of contract or infringement claim. Secondly, even if it was a copyright infringement claim, 17 USC 507(b) states :No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued. If the licensors did not have knowledge of the violation more than 3 years ago it seems they can proceed fairly easily (subject to a determination of reasonable diligence). Otherwise, there are a number of tricky issues: Some courts have held that 507(b) barred such actions, some have said that the copyright holder may sue only for infringements within the last 3 years, and others have held, as you suggested, that the recent infringements are part of one continuing action. While you are certainly correct that the SOL may not be a bar to suit in this instance, neither is the issue very clear as to how a court might rule.